Cross on Public Land Tests the Establishment Clause

WASHINGTON (CN) — Weather-worn and blackened from more than 90 years in the elements, the Bladensburg Peace Cross sits in the middle of a busy three-way interchange just across the Maryland border with Washington, D.C., as a memorial to local soldiers who died in World War I.

The Bladensburg Peace Cross at the Maryland-Washington, D.C., border. (TIM RYAN/Courthouse News Service)

At the center of the cross is a circular bronze inlay featuring a five-pointed star with “U.S.” stamped in the middle and on its base are the words “valor,” “endurance,” “courage,” and “devotion.” An off-white tarp is fastened across its peak, which rises 40 feet above the steady parade of cars that pass, an American flag its only rival in the small park on the median.  

Most cars stream by, stopping only to obey the traffic signals that control the intersection. But on Wednesday, the gray and red concrete cross will be at the center of the debate over how courts evaluate when the government’s use of religious symbols treads on the First Amendment. 

The Bladensburg cross was dedicated in 1925, after the American Legion took over construction when the fundraising efforts of a group of mothers who lost children in the Great War fell short. 

At the time of its construction, the Celtic-style Latin cross sat at the end of the National Defense Highway and other monuments eventually went up around it. As roads built up in the area, the cross was swallowed up in the complex interchange and now stands alone on the median, separated by asphalt from other monuments in the area. 

In part citing safety concerns from having the large cross in the middle of a busy intersection, the Maryland-National Capital Park and Planning Commission took over the land on which the cross sits in 1961. The American Legion reserved the ability to conduct veterans’ events there, which it does on Veterans Day and Memorial Day. 

The cross remained unchallenged until 2014, when the American Humanist Association filed a federal lawsuit saying the cross was an unconstitutional government endorsement of religion. The original suit was against the Maryland-National Capital Park and Planning Commission, but the American Legion intervened as a defendant seeking to preserve the cross. 

The federal court ruled against the American Humanist Association, but the Fourth Circuit reversed, saying that because of the cross’s inextricable ties to Christianity, the monument had the effect of endorsing religion.

Now before the Supreme Court, the question is not really about whether the cross will stay standing, but what the justices say about how lower courts should evaluate establishment clause disputes.

“In all likelihood, this cross is going to be standing once this case is over,” Jeffrey Shulman, a constitutional law professor at Georgetown University, said in an interview. “The real interest in this case is what test, what Establishment Clause test, the court will choose to use.”

Richard Garnett, a professor at Notre Dame Law School and founder of the school’s Program on Church, State and Society, said the state of legal tests for Establishment Clause cases is something of a mess, with courts applying various tests inconsistently. 

“We just really don’t know what is the right question to ask when it comes to these symbols and displays,” Garnett said. “Whether they’re memorial crosses or Christmas holiday decorations or high school holiday pageants, courts just don’t really know what to ask. So I think a lot of us are hoping one of the things that will come out of this case is some kind of clarification and tidying up what exactly is the rule for these kinds of disputes.” 

Perhaps the most well-known Establishment Clause test is the Lemon test, a three-part inquiry that asks whether a government action has a clear secular purpose, what the effects of the action are, and whether it would improperly entangle government in religion.

But the court has also used alternatives to this test throughout the years. Justice Sandra Day O’Connor, for example, suggested a test that looks at whether a reasonable person could see a particular government action as endorsing religion, Garnett said. 

The court has also looked to the history and tradition of a particular symbol, allowing religious symbols so long as they have a history of secular use. 

There is also the so-called coercion test, which Garnett said was the favorite of conservative Justice Antonin Scalia, which allows the use of religious symbols on government property so long as they do not force anyone to participate in a religion or punish them for not doing so. 

This is the test the American Legion asks the Supreme Court to adopt. Saying the monument is an homage to the simple white crosses that mark graves in U.S. military cemeteries across the globe, the group says the cross does not force anybody to participate in a religion.

“Thus, consistent with the original meaning of the establishment clause, this court should clarify that passive displays with religious imagery — like the Peace Cross — will not constitute an establishment of religion except in extraordinary circumstances,” the American Legion’s brief states. “Here, far from extraordinary circumstances, a memorial honoring war dead is precisely where one would expect to encounter religious imagery in a government display.” 

Garnett said it has been difficult for the court to adopt any one of these tests, in part because throughout the history of U.S. law, courts have allowed some government use of religious symbols and people have generally accepted them. 

“You can imagine a bright-line rule that is really easy: no religious symbols on public property,” Garnett said. “That’s a really easy rule to administer, but it would be crazy because it would require such a dramatic departure from longstanding practices, and the court doesn’t want to do that. The court, even when it’s more progressive, is still basically a conservative institution, and it understands that it can’t just do things that are dramatically at odds with our practices.” 

But the American Humanist Association says the cross is “without question” a Christian symbol and treads upon whatever line the court might set on the Establishment Clause. The humanists say that by spending money to maintain a cross on public land, the government is endorsing the religion the cross represents. 

The group notes the original call to fundraising made explicit reference to God and that the movement to build the monument arose only after a secular “doughboy” monument was chosen to go up outside the county courthouse. 

“In sum, the Bladensburg cross violates the central premise of the Establishment Clause by aligning the government (the town and the commission) with the preeminent symbol of Christianity,” the American Humanist Association’s brief states. “That the cross is a war memorial only adds insult to injury.” 

It is not clear how the justices will come down in the case; both Garnett and Shulman expect a somewhat fractured opinion from the court.  

Shulman was skeptical the court would have five votes in favor of the American Legion’s preferred coercion test, saying it is too narrow to apply across the range of Establishment Clause cases that come up. 

“This cross is going to stand, but let’s imagine it was a crucifix instead of a cross, so you have Christ hanging on it,” Shulman said. “Clearly, that’s going to be a violation of the Establishment Clause, but is it coercion? Is it really coercing anybody? You might make an argument that it is, but my point is that coercion is just a really narrow doctrine.” 

Whatever the court eventually decides could have major ramifications for displays and monuments across the country. 

“I just think that the real challenge is, it’s bigger than this particular display, it’s about trying to come up with doctrine that can provide guidance,” Garnett said. “There are tons of these things all over the country; we have a history that’s full of this kind of stuff. Our history is not strictly secular.” 

%d bloggers like this: